Hyde v. State

Full title: GROVER HYDE v. STATE

Court: Criminal Court of Appeals of Oklahoma

Date published: Feb 5, 1927

251 P. 752 (Okla. Crim. App. 1927)

251 P. 752

Opinion

No. A-5798.

Opinion Filed February 5, 1927.

(Syllabus.)

Appeal and Error — Review — Necessity for Exceptions Below. Errors occurring during the trial, other than fundamental error, cannot be considered in this court unless excepted to at the time and incorporated in the motion for a new trial and thereby submitted to the trial court and its ruling thereon excepted to.

Appeal from County Court, Atoka County; Otis H. Presson, Judge.

Grover Hyde was convicted of having possession of a still, and he appeals. Affirmed.

J.G. Ralls, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of having possession of a still, and was sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50.

The principal contention argued is that the information does not charge a public offense. A demurrer was directed against the information, which was overruled and exceptions taken. In the motion for a new trial the overruling of the demurrer is not assigned as error. The only assignments in the motion for a new trial are the overruling of the plea of former acquittal, that the verdict is contrary to law, that the verdict is contrary to the evidence, that the court erred in failing to instruct the jury to acquit, and in admitting the evidence of one witness.

It is well settled by many decisions of this court that errors in the proceedings to be reviewed on appeal must be assigned as error in the motion for a new trial and thus presented to the trial court and his ruling thereon excepted to. This was not done. The information is not so defective as to deprive the court of jurisdiction. The error in overruling the demurrer is waived. Botkin v. State, 16 Okla. Cr. 610, 185 P. 835; Rhoades v. State, 16 Okla. Cr. 446, 184 P. 913; Luce v. State, 36 Okla. Cr. 49, 252 P. 452.

No other matter presented in the brief is of sufficient importance to require discussion.

The case is affirmed.

DOYLE, P.J., and DAVENPORT, J., concur.